AT THE PHYSICIANS LEGAL ISSUES CONFERENCE
CHICAGO (FRONTLINE MEDICAL NEWS)– Being targeted for a peer review can be unnerving for physicians, but proper preparation can help doctors smoothly navigate the process and increase their chances for a favorable outcome.
The first step is taking the situation seriously and remaining calm, said Janet L. Pulliam , a Little Rock, Ark.–based attorney who specializes in health law and employment and labor. Next, hire an experienced attorney and refrain from signing anything without consulting counsel, Ms. Pulliam said at a conference held by the American Bar Association. She also suggested that physicians request an individual meeting with each reviewer before the hearing.
“That’s not to be a lobbying meeting; that’s to be a meeting where you simply, one on one, ask someone who is going to be in judgment of you [to] please keep an open mind until they have heard all of the evidence,” Ms. Pulliam said at the meeting. “Trust me, they’ve already had plenty of information provided to them from the [hospital] administration, so that’s not asking any favors.”
If the peer review stems from a patient interaction or treatment decision, review the patient record in question, but don’t change any documentation, she noted. You can always argue during the hearing that the patient record does not adequately illustrate the encounter or that the charting was inaccurate.
Speak up during peer review meetings and ensure that your case is heard, added Elizabeth A. Snelson , a St. Paul, Minn.–based health law attorney who represents medical staffs, medical societies, and other health professionals.
“Not that it’s easy to put a lawyer in a room and tell her to not talk, but the fact of the matter is that the case will be more successful if it’s the doctor who is addressing the panel, which is usually comprised completely of doctors,” Ms. Snelson said.
Educate the committee, Ms. Pulliam advised. Use the opportunity to explain the protocols specific to your specialty and how they may differ from other specialties.
“It’s your time to educate them,” she said. “The physicians on the committee generally, genuinely want to know what they don’t know, and this is the only shot that you’re going to have to tell them.”
Attend every meeting and be on time. This may sound obvious, but Ms. Pulliam has seen the negative effects a tardy appearance can have on a committee’s perceptions. Making the peer review process a priority and scheduling accordingly is paramount. In addition, ask the hospital for a court reporter to transcribe the hearing. If the hospital refuses, offer to pay for half of the cost, Ms. Pulliam suggested. Accurate documentation is critical and can later be challenged if no record exists. If the hospital declines to share the cost, Ms. Pulliam recommended that doctors foot the entire bill. Make every effort to have a complete transcript, she said.
Be an advocate for a solution when possible, Ms. Pulliam added. Discuss with your attorney potential resolutions, but also know your litigation options. Be prepared to go to court if necessary.
“This is when you need to litigate because procedures and fairness have not been followed in the process,” she said during her presentation. “Courts do allow for equity, declaratory judgments, and injunctions when rights guaranteed to a physician are not followed.”
Knowing those rights and regulations beforehand is key, Ms. Snelson said. States’ peer review laws widely differ. Arkansas law for example, enables physicians to request a hearing officer who is independent and not employed by the hospital and also protects communications by physicians during peer review proceedings. Other states have different features, and some states have nothing regarding peer review on the books, Ms. Snelson said.
“In some states it’s real clear where the peer review requirements are,” she said. “In other states, you really have to go hunting. It could be in the evidence code. It could be all over the place.”
Be aware of appeal rights. Usually, medical staff bylaws allow for an appeal to the governing body of the hospital if a doctor disagrees with a panel’s recommendation. However, sometimes bylaws are silent on appeals, Ms. Snelson said. She noted that the Joint Commission standards refer to peer review hearings and appeals. Thus, if a hospital is accredited by the Joint Commission, and its bylaws do not address appeals, physicians and their attorneys can argue that an appeals process should be in place.
Remember that peer review is not limited to “bad doctors,” and that the process can arise from minor issues, Ms. Snelson said at the meeting.
“Usually when doctors hear ‘peer review,’ they hear ‘discipline,’ ” she said. “[However], It’s not always the ‘bad doctors’; it can be something that is quite minimal that can be escalated. It can be entirely appropriate. What peer review should be is educational … but sometimes it can be used as a weapon.”
On Twitter @legal_med
